Hampton v. City of Jacksonville, FL Brief for Appellants
Public Court Documents
January 1, 1961

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Brief Collection, LDF Court Filings. Hampton v. City of Jacksonville, FL Brief for Appellants, 1961. 8f65d252-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e3734cad-98f6-485c-ab52-7135d1e09514/hampton-v-city-of-jacksonville-fl-brief-for-appellants. Accessed July 11, 2025.
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In t h e &t<xt?s (Emtrt of Appeals F oe t h e F if t h C ir c u it No. 19,298 F r a n k H a m pt o n , et al., -v.— Appellants, C it y of J a ck so n v ille , F lorida , et al., Appellees. a ppea l fro m t h e u n it e d states d istr ic t court FOR THE SOUTHERN DISTRICT OF FLORIDA JACKSONVILLE DIVISION BRIEF FOR APPELLANTS J ack G reen berg C o n sta n ce B a k er M otley M ic h a e l M e l t sn e r 10 Columbus Circle New York 19, N. Y. E r n e st D . J ackson 410 Broad Street Jacksonville, Florida Attorneys for Appellants I N D E X PAGE Statement _.................................. .................................... 1 Specification of Error ........ ......................................... 6 A r g u m e n t ..................................................................... ............. 7 C o n c l u s io n ...................................................................... 14 T able oe Cases Anderson v. Moses, 185 F. Snpp. 727 (S.D. N.Y. 1960) 13 Barrows v. Jackson, 346 U.S. 249 ................................... 11 Biltmore Village v. Royal, 71 So. 2d 727 (Fla. 1954) .... 10 Burton v. Wilmington Parking Authority, 365 U.S. 715 8,9 City of Greensboro v. Simpkins, 246 F. 2d 425 (4th Cir. 1957) .............................................................. 13 City of Petersburg v. Alsup, 238 F. 2d 830 (5th Cir. 1956) ............................. - ............................................ 10 Civil Rights Cases, 109 U.S. 3 ....... ............................... 7 Coke v. Atlanta, 184 F. Supp. 585 (N.D. Ga. 1960) ...... 10 Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 231 ....................................... 13 Cooper v. Aaron, 358 U.S. 1 ....................................... 10,14 Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), aff’d 336 U.S. 933 ............................................................ 7 Department of Conservation and Development, etc. v. Tate, 231 F. 2d 615 (4th Cir. 1956) cert, denied 352 U.S. 838 ..................... 13 Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956) 10,11,12 11 PAGE Eaton v. Board of Managers of the James Walker Hos pital, 261 F. 2d 521 (4th Cir. 1958) cert, denied 359 U.S. 984 .................. 12 Ex Parte Virginia, 100 U.S. 339 ................................... 7 Hall v. St. Helena Parish School Board, 197 F. Snpp. 649, 651 (E.D. La. 1961) ....................... ................... 14 Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 (4th Cir. 1945) .................................. 13 Lane v. Wilson, 307 U.S. 268, 275 ........ .............. ......... 7 Muir v. Louisville Park Theatrical Association, 347 U.S. 971........ 13 Eichardson v. Holman, 160 Fla. 65, 70, 33 So. 2d 641 (1948) ............................................. ........................... 10 Shelley v. Kramer, 334 U.S. 1 ..... ................. 11 Smith v. Texas, 311 U.S. 728, 732 .................................. 14 Tonkins v. City of Greensboro, 276 F. 2d 890 (4th Cir. 1958) .............................. 12 S ta tu te 20 Florida Statutes, Chapter 689.18 (1960 Supp.) ...... 10 O rd in a n ce City Ordinance No. EE-16 2 I n th e I n t t e f t Biniim ( t a r t ui A p p e a l s F oe t h e F if t h C ir c u it No. 19,298 ------- ------- ---------------- F r a n k H a m pt o n , et al., Appellants, C it y of J a c k so n v ille , F lorida , et al., Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA JACKSONVILLE DIVISION -------------------- ---- ------------------------- ---- BRIEF FO R APPELLANTS Statem ent On July 7, 1958, appellants, Negro citizens of Jackson ville, Florida, instituted a class action against the City of Jacksonville, claiming that the city was denying them, and other colored citizens similarly situated, the equal protec tion of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. The complaint alleged that the City, its officers and agents, pursued a policy of racial segregation in the operation of two mu nicipally owned, managed and maintained recreational fa cilities, the Brentwood and Hyde Park Golf courses (ft. 4, 201). The courses had been owned and operated by the city for over twenty years (R. 116). 2 Upon plaintiffs’ motion for summary judgment, the United States District Court for the Southern District of Florida entered its final decree April 1, 1959, effective as of April 7, 1959, restraining the defendant City of Jackson ville, Florida, its officers, agents, servants and employees and their successors in office, from refusing to allow the plaintiffs, and other Negroes similarly situated, to use the Municipal golf courses upon the same conditions as white persons (R. 2). The Court retained jurisdiction for the purpose of enforcing the injunction (R. 3). April 6, 1959, the day before the injunction was to take effect, the City of Jacksonville closed the two golf courses (R. 202). August 11, 1959, the City Council of the City of Jacksonville passed ordinance No. EE-16 authorizing the sale of the golf courses upon certain conditions (R. 36, 202, 203). On uncontradicted evidence, the District Court found (R. 203, 204) that on February 19, 1960, the City sold the Hyde Park Golf Course to Fred A. Ghioto for the sum of $615,000.00, $15,000.00 was down payment and $600,- 000.00 a purchase money mortgage in favor of the City; on February 29, 1960, the City sold the Brentwood Golf Course to Ronald Hurley for the sum of $600,000.00, $10,- 000.00 down payment and $590,000.00 purchase money mort gage in favor of the City. In the deeds, the City retained certain parcels and ease ments for electric and telephone lines, drainage and a radio transmitter (R. 11, 12, 17-25) together with right of access to and right to repair and maintain the parcels and easements (R. 12, 24). With the land, the vendees received furnished club-houses, accessory buildings and equipment from the City (R. 28,133). Both deeds contained the following reverter clause (R. 13, 25): 3 “This conveyance is made upon the express condi tion that the property hereby conveyed shall be con tinuously maintained by the Grantee, its successors and assigns, as a golf course and shall be used only for the purpose of a golf course; and if said property be not so maintained or should it be diverted to other use, said property shall immediately revert to the Grantor, its successors or assigns, and it shall be law ful for the Grantor, its successors or assigns to re enter and re-possess said property and thereafter to peaceably hold and enjoy the same as if this conveyance had not been made.” A member of the City Commission which operated the courses, decided to close them, and arranged the sale (R. 121, 115, 122, 131) testified that the reverter clause was recommended so “that the Citizens of Jacksonville would have golfing facilities” (R. 131), but he made no effort to assure that the facilities would be open without racial restriction (R. 134). Roland Hurley, prior to his purchase of the Brentwood course, was the golf pro at Brentwood. When the City closed the Course, he became the caretaker at a salary of $75.00 per week (R. 116). One month before Hurley en tered into the contract of sale with the City, he had from twelve to fifteen hundred dollars in the Bank (R. 72). He borrowed the funds necessary to make a $10,000.00 down-payment (R. 74). Fred Ghioto was the golf pro at the Hyde Park Course prior to his purchase of the Course (R. 89). When the City closed the Course, he became the caretaker at a salary of $75.00 per week (R. 116). One month before Ghioto bid for the Hyde Park Course, he had approximately four thousand dollars in the bank (R. 92). In order to purchase 4 the Hyde Park Course, Ghioto borrowed $17,000.00 (R. 74, 75). Both Ghioto and Hurley submitted financial state ments to the City prior to the sale (R. 94, 124). Neither the City nor defendants Ghioto and Hurley ad duced any evidence to deny that Brentwood and Hyde Park golf courses were following and would continue to follow a policy of racial discrimination. Ghioto stated publicly that the course would be open to the public, but its use limited to white people (R. 7, 50). In his answer to plain tiffs’ Petition to Modify Final Decree, Ghioto alleged that the course would be operated on a private basis (R. 50). On February 5, 1960, plaintiffs filed a Petition to Modify Final Decree alleging that the City: “ . . . Under the sale retains a present valuable in terest in both golf courses and that this interest under the sale will anner (sic) to the benefit of the citizens of Jacksonville and for said reasons unless the pur chasers of both golf courses are enjoined from refusing to permit the petitioners and other colored citizens similarly situated to use the Hyde Park and Brent wood Golf Courses upon the same basis and upon the same conditions as white persons are permitted to use them, they will be denied the equal protection of the law . . . ” (R. 6). And that “ . . . The purported sale . . . is an act of subterfuge on the part of the Defendant City of Jacksonville in an effort to abridge the rights of the petitioners and other colored citizens similarly situated in that the . . . price and conditions of each sale are unusual and uncommon . . . and . . . in bad faith” (R. 7). 5 Petitioners asked the District Court to enjoin the sale of the courses; make the purchasers parties to the suit and enjoin them from refusing to permit petitioners, and other colored citizens similarly situated, the use of the golf courses upon the same basis as white persons (E. 8). On February 8, 1960, the District Court ordered Gfhioto and Hurley made party defendants (E. 29, 30). A full trial was held before the Honorable Bryan Simpson, Judge, on June 15, 1961. At the close of plaintiffs’ case, defendants moved the Court to dismiss the Petition on the ground that upon the facts and the law the plaintiffs showed no right to relief, which motion the Court granted on the merits (E. 206) on June 22nd, 1961. The District Court held (E. 204-206): “The defendant City of Jacksonville had the author ity and right to close the two Municipal golf courses and to sell the same, notwithstanding the permanent injunction entered in this cause on the 1st day of April, 1959. Tonkins v. City of Greensboro (1958), 162 F. Supp. 549, 276 F. 2d 890; Hampton, et al. v. City of Jacksonville, supra. “That the possibility of reverter retained by the City on both golf courses did not make the two golf courses publicly owned or operated golf courses and did not give the Defendant City of Jacksonville con trol over the operation of the golf courses which would amount to ‘State action’ within the purview of the Fourteenth Amendment to the Constitution. Eaton v. Board of Managers of the James Walker Memorial Hospital (1958), 164 F. Supp. 191, affirmed 261 F. 2d 521, certiorari denied 79 S. Ct. 941, 359 U.S. 984, 3 L. Ed. 2d 934. 6 “That no collusion, illegality, fraud or clear abuse of discretion has been shown to exist with respect to the sale of the two Municipal golf courses and each of such sales, to wit: The Hyde Park Golf Course to Fred A. Ghioto and the Brentwood Golf course to Roland Hurley, was bona fide. “That the Defendants, Hurley and Ghioto, as owners of said respective golf courses, as long as they do not violate the reverter clause in their deeds or violate the covenants of their mortgages, have a right to the undisturbed possession and the right of use of their respective golf courses in such way as in their own business judgment each considers best to operate” (R. 205). Plaintiffs filed Notice of Appeal to this Court in the United States District Court, Southern District of Florida, Jacksonville Division on July 12, 1961 (R. 206-209). Specification o f Error The Court below erred in failing* to enjoin defendants from refusing to permit plaintiffs, and other Negroes sim ilarly situated, the use, on a racially nondiscriminatory basis, of property sold by the City, so that “citizens of Jacksonville would have golfing facilities,” subsequent to an injunction to desegregate, when the City retained a reverter interest in the property limiting its use to that of golf courses; and sold the property for a down payment of less than 2.5% of its sale price to former golf course employees. 7 ARGUMENT T he City o f Jacksonville has m ain ta ined sufficient ow nersh ip and co n tro l o f th e p ro p e rty to m ake opera tio n o f th e p ro p erty sub ject to the F o u rteen th Amend m ent. It is well settled that the Fourteenth Amendment affords no protection against purely private conduct, but extends as against “State action of any kind . . . which denies . . . the equal protection of the laws.” Civil Rights Cases, 109 U.S. 3, 11; Ex Parte Virginia, 100 U.S. 339. Whatever difficulties the courts have encountered applying this prin ciple to the particular, one precept stands out: the Consti tution is never so inflexible as to permit the indirect ac complishment of discrimination which is directly forbidden. The protection of the Constitution extends to “sophisticated as well as simple-minded modes of discrimination.” Lane v. Wilson, 307 U.S. 268, 275; Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949) aff’d 336 U.S. 933. The City of Jacksonville has attempted to accomplish by means of an artifice of private ownership what it has been enjoined from accomplishing directly. No question of the power of a City to close municipal recreational fa cilities, or to sell such facilities, when the City divorces itself from ownership and control, is involved in this ap peal. Rather, the question presented for decision is whether a municipality may avoid the requirements of the equal protection clause by selling property on extremely favorable terms while it retains valuable present interest in and control over the use of that property. Only last term the United States Supreme Court found that the restaurant-lessee of a municipal parking authority was subject to the proscriptions of the Fourteenth Amend 8 ment “as certainly as though they were binding covenants written into the agreement itself.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 726. In discussing the relationship) of the public authority and the lessee the Court stated : “ . . . in its lease with Eagle the Authority could have affirmatively required Eagle to discharge the respon sibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation. But no state may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is not of consolation to an individual denied the equal protection of the laws that it was done in good faith. Certainly the conclusion drawn in similar cases by the various Courts of Appeals do not depend upon such a distinction. By its inaction the Authority, and through it the State, has not only made itself a party to the refusal of service, hut has elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of inter-dependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Burton v. Wilmington Parking Authority, supra, at 725. (Emphasis added.) The vendees in the instant case are no less interrelated with the City than the lessee in Burton. The two golf courses involved, valued at over $1,000,000.00 dollars, were maintained by the City with public funds and operated by the City for over twenty years, before the decree of the 9 United States District Court ordering an end to racial segregation prompted the City, first, to close, and then, to sell them to two golf course workers. The vendees, who formerly operated concessions at the courses, were re ceiving $75.00 per week salary from the City as caretakers at the time of the sale (R. 116). They paid less than 2.5% of the purchase price of the property (pp. 203, 204), leav ing the City able to repossess for nonpayment and with the substantial interests of a mortgagee for over 97.5% of the value of the property. Moreover, the vendees had to borrow to pay even these unusually small down pay ments. Quite aside from consideration of motive, this con duct speaks eloquently of the posture of this cause. “Only by sifting facts and weighing circumstances can the non- obvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, supra at 365 U.S. 722. By insertion of the following clause in the conveyance: “This conveyance is made upon the express condi tion that the property hereby conveyed shall be con tinually maintained by the Grantee, its successor and assigns, as a golf course which shall be used only for the purpose of a golf course; and if said property be not so maintained or should it be converted to other use, said property will immediately revert to the Grantor, its successor or assigns, and it shall be law ful for the Grantor, its successors or assigns to re-enter and re-possess said property and thereafter to peace ably hold and enjoy the same as if this conveyance had not been made.” the City has retained not only a valuable present interest in the properties conveyed, and a severe limitation on the rights of the vendees, but also the assurance that the prop 10 erties conveyed will always be used as the City wishes. As far as the Fourteenth Amendment is concerned, by retaining a present interest in the properties and absolutely defining the use to which the properties may be put, the City has made those who operate the courses instrumentali ties of the State to the same extent as if title had not passed and the transaction had been cast in the form of a leasehold. Certainly, the form in which the State’s prop erty interest is cast cannot determine appellants’ consti tutional rights. Cf. Cooper v. Aaron, 358 U.S. 1, 4, 19. And this Court has rejected the contention that a municipality can avoid the Fourteenth Amendment by acting in a “pro prietary” capacity. City of Petersburg v. Alsup, 238 F. 2d 830 (5th Cir. 1956). This Court has held a lessee in County building may not exclude Negroes even assuming there be no express res ervation of control under the terms of the leasehold or purpose of discrimination on the part of the County. Der- rington v. Plummer, 240 F. 2d 922 (5th Cir. 1956). See Cole v. Atlanta, 184 F. Supp. 585 (N.D. Ga. 1960). The City of Jacksonville has not only retained a valu able interest in the property conveyed1 but so conditioned the sale of the remaining interest that segregation would be inevitable. When the City closed the courses rather than integrate, the City determined that the courses could be operated only at a loss if they were integrated (E. 39, 122). 1 In Florida, reversionary interests are present interests which may be conveyed or devised. Richardson v. Holmcm, 160 Fla. 65, 70, 33 So. 2d 641 (1948). The Supreme Court of Florida has found reverters valuable enough an interest to invoke the obligation of contracts clause of the Constitution to prevent their abrogation. Billmore Village v. Royal, 71 So. 2d 727 (Fla. 1954). By statute, Florida has limited reverters to twenty-one years duration while specifically providing that the restrictions do not terminate and may be enforced in any court of competent jurisdiction. 20 Florida Statutes Chapter 689.18 (1960 Supp.) (E. 45). 11 But the City sold the properties to be operated as golf courses and golf courses only (R. 13, 25) in order that “the citizens of the City of Jacksonville would have golfing fa cilities” (R. 131,132, 134). This logic of the City’s proves too much. Accepting the premise put forth by the City, the only possible conclusion is that the vendees were given a choice of losing money or segregating. For, if the properties can only be operated as golf courses and as golf courses they cannot earn a profit unless segregated, then, there could be absolutely no doubt that the vendees would operate them on a segregated basis. Otherwise the City would soon repossess for non payment of the mortgage. It is no answer to this conclusion that the vendees were private individuals able to decide freely whether to op erate the courses on a nondiscriminatory basis. The City imposed the condition that made any such free choice im possible when it limited the use of the properties to golf courses. And there is little in the financial condition of the vendees, as revealed to the City Council, to make one conclude that they could have any real choice in the matter. Given the limitation on use, the vendees’ financial condition, and the City’s assumption that the courses could not be operated at a profit if desegregated, racial discrimination in the operation of the courses was as explicitly willed as if written into the deeds themselves by restrictive covenant.2 In the District Court, the City argued that because the Jacksonville City Council declared the two golf courses surplus property, their sale came within a dictum suggested in Derrington v. Plummer, supra. But therein the Court stated: 2 This device was, of course, closed to the City. Shelley v. Kramer, 334 U. S. 1; Barrows v. Jackson, 346 U. S. 249. 12 “No doubt a County may in good faith lawfully sell and dispose of its surplus property, and its subsequent use by the Grantees would not be State action. Like wise, we think that when there is no purpose of discrim ination, no joinder in the enterprise, or reservation of control, by the County, it may lease for private pur poses property not used nor needed for County pur poses . . . ” Derrington v. Plummer, supra at 925. (Emphasis added.) The Council’s determination that the two golf courses were surplus is an artificial determination in the face of the City’s limitation of use of the properties to golf courses and the positive stipulation in the ordinance empowering sale (R. 36) and the deeds to this effect (R. 13, 25). The City, moreover, has maintained throughout that one of the functions of the restriction on use of the properties was to meet a public need—“preserving golfing facilities for the citizens of Jacksonville” (R. 134, 131, 132). Even ac cepting that the determination of the City Council made these properties surplus, the conditions of sale do not meet the test set out in Derrington, supra, for there the Court stated that there must be no purpose of discrimination, no reservation of control, no joinder in the enterprise and the property must not be used nor needed for public pur poses. Appellees’ reliance on Tonkins v. City of Greensboro, 276 F. 2d 890 (4th Cir. 1958) and Eaton v. Board of Managers of the James Walker Hospital, 261 F. 2d 521 (4th Cir. 1958) cert, denied 359 U.S. 984 is misplaced. In Tonkins the City withdrew completely from the ownership of the pool, retaining neither interest in the property nor control over its use. In Eaton a reversionary interest had been created in a deed of 1901, but the Court of Appeals held that prac tical control of the operation of the Hospital by the City 13 had long ceased by the time the suit was brought. Far more to the point is the decision of the Court of Appeals for the Fourth Circuit in Kerr v. Enoch Pratt Free Li brary, 149 F. 2d 212 (4th Cir. 1945) holding that the Board of Trustees of a library was an agency of the State, despite the fact that the Board had been vested with the power of self-perpetuation, because of the “degree of control over the activities and existence of the library on the part of the State,” 149 F. 2d at 219. There are numerous other cases to the same effect. De partment of Conservation and Development, etc. v. Tate, 231 F. 2d 615 (4th Cir. 1956) cert, denied 352 U.S. 838 involved the refusal to permit Negroes to use the bathing facilities in a seashore park owned by the State but op erated by a lessee. The Court of Appeals held that equal protection of the laws “may not be abridged by leasing of the parks with ownership retained in the State,” 231 F. 2d at 616. City of Greensboro v. Simpkins, 246 F. 2d 425 (4th Cir. 1957) dealt with discrimination on a golf course constructed by the City on City owned land but operated by a lessee. Muir v. Louisville Park Theatrical Association, 347 U.S. 971 related to discrimination by the lessees of an amphitheatre in a City park but leased to a theatrical asso ciation. And see Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 231; Anderson v. Moses, 185 F. Supp. 727 (S.D. N.Y. 1960). Under the rule of the cases cited above, if the vendees had leased the properties from the City and then followed a pattern of racial discrimination, they would be subject to the Fourteenth Amendment. That the transaction was cast in the form of a sale cannot change this result. Con trol was retained in the form of a sharp limitation on use. The City owns an interest in the properties. The City holds a mortgage for over 97.5% of the sale price. Rights guar 14 anteed under the Fourteenth Amendment cannot be nulli fied indirectly through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U.S. 728, 732; Hall v. St. Helena Parish School Board, 197 F. Supp. 649, 651 (E.D. La. 1961); Cooper v. Aaron, 358 U.S. 1,17. CONCLUSION W h e r e fo r e , for the foregoing reasons, it is respectfully submitted, that the judgment of the Court below should be reversed. Respectfully submitted, J ack G reenberg C o n sta n ce B a k er M otley M ic h a e l M e l t sn e r 10 Columbus Circle New York 19, N. Y. E r n e st D . J ackson 410 Broad Street Jacksonville, Florida Attorneys for Appellants 38